Fellows v State of Queensland [2024] QIRC 55 | Case summary

Queensland Industrial Relations Commission|2024-03-04

ANTI-DISCRIMINATION - application for an order protecting complainant's interests - consideration of s 144 of the Anti-Discrimination Act 1991 (Qld) - where the application was filed after the applicant's complaint had been referred to the Queensland Industrial Relations Commission - consideration of whether the applicant has made out a prima facie case - consideration of balance of convenience - application dismissed

Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57

Banovic v State of Queensland, Department of Education [2019] QIRC 132

Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618

Bond v Multicap Limited [2020] QIRC 051

Mr A v Viva Energy Australia Pty Ltd [2021] QIRC 309

[1] On 6 December 2021, Ms Fellows filed a complaint with Queensland Human Rights Commission (QHRC). She alleged discrimination on the basis of impairment and race, stating "I am bi-polar and identified as of aboriginal descent in my HR records."[1]

[2] Ms Fellows' complaint to the QHRC may be summarised as follows:

Ms Fellows' substantive position is PO5 Senior Prosecutor, Office of the Work Health and Safety Prosecutor.

Ms Fellows "identified as a person with disability and of Aboriginal descent" on her HR records, specifically that is "... Bi-polar, a condition which I have successfully managed for approximately 25 years".

Ms Fellows stated that from 2017-2019 she "experienced an ongoing pattern of petty bullying behaviour from the Office Practice Manager", that she believed to be "racially motivated".

On 16 May 2019, Ms Fellows disclosed her bi-polar condition to the Work Health and Safety Prosecutor, adding that "the issues with (the Office Practice Manager) and the stress it was causing me were beginning to make things difficult for me".

Ms Fellows said that the Work Health and Safety Prosecutor began avoiding her after that disclosure, and relayed instructions through the Senior Director. Ms Fellows complained that files she had worked on were reallocated to others and that she "was not consulted about these decisions or informed why". Ms Fellows further submitted that "Several other gaslighting type events occurred where I was ambushed about my work, denied administrative support, subjected to gossip, told I was to be relocated to a desk in the centre of the room as I was too introverted, told my work was not of a standard of a PO5 or PO6 and stood over".

Ms Fellows stated that she "eventually had a nervous breakdown in late September 2019" and she "commenced sick leave on 1 October 2019".

Ms Fellows was contacted by a human resources officer at the Office of Industrial Relations (OIR) in October 2019, to set in place return to work arrangements. She understood those representations to be that "they would provide work with full support on suitable duties and find alternative work for me. It was accepted by OIR that returning to the OWHSP would not be possible."

Ms Fellows' treating psychiatrist and GP "both believed it could be beneficial for me to participate in the return to work rehabilitation program offered by OIR". Ultimately, "a placement was offered within the Workers Compensation Fraud Prosecutions team (WCF - OIR)" and Ms Fellows "commenced working two days a week for WCF - OIR on 19 March 2020." She gradually increased her hours while regularly attending appointments with her psychiatrist.

The limitation period for a WorkCover compensation claim expired on 1 April 2020.

Her treating psychiatrist, Dr Larder, diagnosed Ms Fellows as having an adjustment disorder on 23 June 2020.

Ms Fellows stated that "Certain events during the placement aggravated my condition. My psychiatrist provided me a medical certificate on a WorkCover template and on presentation of this certificate to the employer, I was abruptly informed that my placement would cease ... I applied for WorkCover the day after the placement ended." Ms Fellows believed that terminating her placement was a breach of the OIR Workplace Rehabilitation policy.

Ms Fellows lodged a WorkCover claim, though she said that was "rejected as it was lodged out of time". She applied to the Regulator for a review of that decision. WorkCover's decision was upheld. Ms Fellows then filed an appeal with the Queensland Industrial Relations Commission (QIRC). Ms Fellows stated she was told that "it would be extremely difficult to appeal an out of time decision, and due to my health I decided not to proceed and focus on my recovery".

On 15 September 2021, the Principal Consultant, OIR Health and Wellbeing Organisational Culture, emailed Ms Fellows to advise that "the focus is for you to return to your substantive position but this can be done on a gradual basis and the support of your treating doctor, and with the support of an external provider ..." Whilst it was understood that Ms Fellows was "reluctant to return to OWSHP", there was no other available role to which she may be transferred. Ms Fellows considered that comment to be "further bullying from OIR, and it is aggravating my condition further."

Ms Fellows first exhausted her paid leave accruals, then continued for a period on leave without pay.

Ms Fellows applied to QSuper for income protection benefits, though that ceased in February 2022.

Ms Fellows said that an independent medical assessment for QSuper "confirmed the treating psychiatrist diagnosis and determined that I will be unable to work for another 12 months."

Ms Fellows submitted that "All medical practitioners are in agreement that my condition has no part to play in my injury, although now it has aggravated it."

a) The Work Health and Safety Prosecutor and Office Practice Manager deliberately aggravated her mental health condition to "force her to resign so as to find a 'better class' of employee.

b) The Department deliberately frustrated Ms Fellows' access to WorkCover.

Ms Fellows was denied natural justice by OIR because her matter "ought to have been considered by an independent party."

d) Ms Fellows believes "There is an underlying element of discrimination due to my mental health condition and racism at play."

[3] In her complaint to the QHRC, Ms Fellows described the impact on the actions as:

Loss of income through 15% reduction in wages on QSuper income protection and frozen leave balances due to leave without pay. Out of pocket medical expenses that are ongoing. Aggravation of medical condition and inability to focus on recovery. Effects on family. Impact on career and RTW prospects.

[4] In her complaint to the QHRC, the outcome Ms Fellows sought was an apology and financial compensation.

[5] On 29 September 2022, the QHRC wrote advising Ms Fellows that her complaint had been accepted. That does not mean that the complaint is substantiated, but rather, that it discloses an issue which the QHRC will consider further through conciliation, and the like.

[6] Ultimately, Ms Fellows' complaint was not resolved through the QHRC processes.

[7] On 21 March 2023, Ms Fellows formally notified the QHRC that she now required the referral of her complaint to the QIRC. That action appears to have been prompted by a telephone conversation between Ms Fellows and a QHRC officer, referred to in email correspondence dated 21 March 2023.

[8] Then on 24 March 2023, QHRC sent correspondence to Ms Fellows advising her that:

A request for referral to the Queensland Industrial Relations Commission (QIRC) has been received.

This complaint has now been referred to QIRC. QIRC will contact you as soon as possible regarding their procedures. The contact details for QIRC are:

Information about QIRC can be found at www.qirc.qld.gov.au.

The Commission's file on this matter has now been closed.

[9] On 27 March 2023, the Form 85 Referral of a matter (Form 85 Referral) was filed by the QHRC with the Industrial Registry.

[10] On or about 28 March 2023, the Industrial Registry provided the Respondents with that Form 85 Referral. Ms Fellows did not receive the email sent on that date, due to a typographical error made in her email address.

[11] On 2 May 2023, Ms Fellows filed a Form 84 Application for an order protecting complainant's interests (Form 84 Application) with the Industrial Registry. That application was accompanied by a schedule outlining Ms Fellows' reasons for seeking the order, pursuant to s 144 of the Anti-Discrimination Act 1991 (AD Act) - and a copy of the QHRC correspondence dated 24 March 2023 advising that her complaint had been referred to the QIRC.

[12] Various email exchanges between the parties and Industrial Registry occurred between 4 May 2023 and 5 May 2023, resulting in the Respondents' agreement to "take no action in relation to ceasing Ms Fellows' employment until the Form 84 Application has been resolved."[2]

[13] On 8 May 2023, Ms Fellows received email correspondence from the Industrial Registry correcting the administrative error at [10] above.

[14] A Directions Order was issued on 10 May 2023 to hear the parties on Ms Fellows' Form 84 Application. Those Directions were vacated, and reissued on 29 August 2023.

[15] On 12 September 2023, Ms Fellows filed submissions and supporting materials.

[16] On 26 September 2023, the Respondents filed submissions.

[17] On 10 October 2023, Ms Fellows filed reply submissions.

[18] Neither party sought leave to make oral submissions or further written submissions.[3]

[19] In accordance with s 451(1) of the Industrial Relations Act 2016 (Qld) (IR Act), this matter was decided on the papers.

[20] In the Complainant's Statement of Facts and Contentions, filed in the Industrial Registry on 22 September 2023 with respect to the substantive matter,[4] Ms Fellows asserted that (emphasis added):

... she has, on occasions, been directly discriminated against by the Respondents based on two impairments, being her:

existing complex mental health condition (bipolar affective disorder) (Impairment 1); and
a psychiatric injury sustained on 1 Oct. 2009, diagnosed as an adjustment disorder / reactive anxiety disorder (Impairment 2).[5]

[21] In the Complainant's Statement of Facts and Contentions, Ms Fellows sought the following outcome:

b. Loss of income (calculations below): $154,177.28

Or, an amount that the Commissioner deems appropriate.

d. Destruction of all hardcopy and electronic medical related reports and correspondence relating to the Complainant in the possession of the Respondents;

f. A written apology from the Chief Executive Office of each Respondent;

g. A donation to Sane Australia that reflects the Respondents level of remorse, to be decided by the Respondents or the Commissioner.[6]

[22] On 29 November 2023, a Consent Order was issued in these terms:

That pending the Commission's decision in AD/2023/40, no decision will be made in relation to the complainant's employment which may result in the termination of the complainant's employment.

[23] In her Form 84 Application, Ms Fellows stated (emphasis added):

I seek an order protecting the complainant's interests pursuant to s 144 of the Anti-Discrimination Act 1991 preventing the respondents taking any action in relation to the complainant's employment with the Queensland Government, in particular, with the Office of Industrial Relations or the Office of Work Health and Safety Prosecutor, until the matter referred to the QIRC by the Queensland Human Rights Commission (QHRC Ref: BNE5415432:ZR) on 24 March 2023, has either been conciliated or a determination made by the QIRC.

Schedule 1 attached outlining reasons for this request.[7]

[24] This decision concerns the Form 84 Application that relates to s 144 of the AD Act. That section relevantly provides (emphasis added):

Applications for orders protecting complainant's interests (before reference to tribunal)

(1) At any time before a complaint is referred to the tribunal, the complainant or

the commissioner may apply, as provided under the relevant tribunal Act, to the tribunal for an order prohibiting a person from doing an act that might prejudice -

(a) the investigation or conciliation of the complaint; or

(b) an order that the tribunal might make after a hearing.

(a) in relation to a work-related matter - the industrial relations commission; or

(b) in relation to any other matter - QCAT.

[25] The Respondents submitted that "s 144 of the AD Act may only be exercised before a complaint is referred to the QIRC (as the relevant tribunal) by the Queensland Human Rights Commission (QHRC). In this case, the Application was filed by the Complainant after the Complainant's complaint was referred to the QIRC by the QHRC."[8] Therefore, the Respondents' position is that the QIRC does not have power under s 144 of the AD Act to issue the orders sought by the complainant.

[26] Ms Fellows asserted that (emphasis added):

[1] The Queensland Human Rights Commission (QHRC) referred the complaint to the Queensland Industrial Relations Commission (QIRC) on 24 March 2023. The Complainant was not notified of the referral until 8 May 2023, by email from the QIRC Registry advising of an administrative error resulting in documents not being provided to the Complainant, including the Form 85 Referral and 236 pages of material, a Directions Order, the Respondents' Application for Legal Representation, the Respondents' Lawyer's Notice and an Affidavit of Ms P. Tyquin.

[2] The Respondents were provided with the Referral by the QIRC Registry on or about 28 March 2023.

[3] The Complainant made her application for an order protecting her interests under section 144 of the AD Act 1991, on 2 May 2023. At this time, the Complainant was unaware that the matter had been referred to the tribunal. Respectfully, the delay in the Complainant receiving the referral notification, led the complainant to believe that it was necessary to make an application under s 144 of the AD Act 1991 to protect her interests. Had the Complainant been aware of the referral of the matter, she would have made an application for an interim order protecting her interests under section 190 of the AD Act 1991.[9]

[27] Ms Fellows filed the Form 84 Application in the Industrial Registry on 2 May 2023. That is uncontentious.

[28] Relevantly, the QHRC had earlier submitted the Form 85 Referral of a matter dated 22 March 2023. That was filed in the Industrial Registry on 27 March 2023.

[29] As shown above at [24], s 144 of the AD Act clearly states that the complainant may apply for orders protecting her interests "at any time before a complaint is referred" to the QIRC. Clearly, Ms Fellows made her application after the complaint was referred by the QHRC to the QIRC.

[30] Ms Fellows also asserted that at the time of filing her Form 84 application in the Industrial Registry on 2 May 2023, she was "unaware that the matter had been referred to the tribunal". She submitted that "The Complainant was not notified of the referral until 8 May 2023, by email from the QIRC Registry advising of an administrative error resulting in documents not being provided to the Complainant ..." I do accept that there was a typographical error made in the Complainant's email address that resulted in the delayed provision of some documents to Ms Fellows. That fact is evident in the email before me dated 8 May 2023. However, it cannot be true that Ms Fellows was "unaware that the matter had been referred to the tribunal" at the time of filing her Form 84 Application on 2 May 2023. That is because the QHRC sent correspondence to Ms Fellows dated 24 March 2023 advising her that her "complaint has now been referred to QIRC" - and Ms Fellows attached that QHRC correspondence to her Form 84 Application. Clearly then, Ms Fellows was aware that the QHRC had referred her complaint to the QIRC on 2 May 2023.

[31] In support of the assertion that she was not aware of the referral of complaint to the QIRC at the time of filing the Form 84 Application on 2 May 2023, Ms Fellows further noted that "Had the Complainant been aware of the referral of the matter, she would have made an application for an interim order protecting her interests under section 190 of the AD Act 1991." To that, I would observe that there are often several courses of action available to a party in deciding how to run (or defend) a particular matter. This decision is about the course of action Ms Fellows actually took, not any she might have taken, because that is the case the Respondents have been required to respond to.

[32] For those reasons, I accept the Respondents' jurisdictional objection to be valid. I cannot issue the orders sought by Ms Fellows under s 144 of the AD Act. I must dismiss the Form 84 Application.

If the Commission could have made the order sought, should it?

[33] Despite my comments at [31] above, Ms Fellows has signalled that she may make an application for an interim order protecting her interests under s 190 of the AD Act. That section provides:

190 Interim orders protecting complainant's interests (tribunal)

(1) This section applies if a complaint has been referred to, but not yet determined by, the tribunal.

(2) The complainant may apply to the tribunal for an order prohibiting a person from doing an act that might prejudice an order the tribunal might make after a hearing.

(3) A party may apply to the tribunal for an order varying or revoking an order made under subsection (2).

(4) This section does not limit the tribunal's powers under the relevant tribunal Act.

[34] Mindful of the obligation for the timely and efficient conduct of matters before the Commission, I consider it appropriate then to address the common element in both ss 144 and 190 of the AD Act here. That is, the ability for a complainant to apply to the tribunal for an order prohibiting a person from doing an act that might prejudice an order the tribunal might make after a hearing.

[35] Both parties have explained their respective positions on that matter. Although the parties' submissions address s 144 of the AD Act, s 190 of the AD Act contains the same element.

[36] Reading ss 144 and 190 of the AD Act as a whole, including the headings, renders it necessary to consider whether the Complainant's interests might be prejudiced with respect to an order that the Tribunal might make after a hearing, if her employment ended before the complaint was conciliated, heard and determined.

[37] In Beecham Group Ltd v Bristol Laboratories Pty Ltd,[10] the High Court explained the two-step test for injunctive relief:

The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.[11]

[38] The High Court also noted that, with respect to a prima facie case:

How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.[12]

[39] That was followed in Australian Broadcasting Corporation v O'Neill.[13] In this Commission, that was followed in Bond v Multicap Limited[14] and in Seen v Rebel Sport Limited.[15]

[40] In Bond v Multicap Limited,[16] Industrial Commissioner Power summarised (citations omitted):

The decision in Connor v Evans & Salvation Army determined that it was not necessary for the applicant to establish a prima facie case, however the QIRC must be satisfied of the existence of a serious issue to be tried. In the more recent case of Jones v Queensland Health Justice Wilson outlined the two main enquiries required as per the common law approach:

(a) Has the applicant made out a prima facie case, in the sense that if the evidence remains as it is, there is a sufficient likelihood of success to justify the preservation of the status quo pending the trial; and

(b) Whether the inconvenience of injury which the Applicant would be likely to suffer if an injunction is refused outweighs, or is outweighed by, the injury which the defendant would suffer if an injunction were granted.[17]

[41] However, that test is to be applied with respect to s 144 (and s 190) of the AD Act. The sections are a limited injunctive power and addresses specific forms of prejudice to the complainant, namely "an order that the Tribunal might make after a hearing".

[42] In Mr A v Viva Energy Australia Pty Ltd,[18] Deputy Merrell considered matters relevant to the Commission's considerations under s 144 of the AD Act. His explanation is apposite in this case (emphasis added) (citations omitted):

[54] As I indicated to the parties during the hearing, there was a question in my mind as to whether the practice that has been adopted by the QADT, the QCAT and the QIRC to determine s 144 applications, by applying at least two of the principles to determine whether or not an interlocutory injunction should be granted, is correct. Two reasons immediately come to mind that give rise to the question.

[55] First, the Parliament has chosen not to use the noun 'injunction' in respect of the grant of power given under s 144 of the Act. It has been held by Gray J in McGee v Sanders (No 2) that where the Parliament has chosen not to use that noun in conferring a broad power on a court to make interim orders, then it may not be that the principles considered in determining whether or not to make an order for an interlocutory injunction should be applied in dealing with applications for such orders.

[56] Secondly, the statutory power given under s 144 of the Act is in strict terms. The matters the QIRC must consider are the act the complainant or the HRC contends might prejudice the investigation or conciliation of the complaint, or an order that the QIRC might make after a hearing. The concern I have is that the principles considered in interlocutory injunctions may be a distraction from the matters to which s 144 directs attention.

[57] However, as I raised this with the parties during the hearing, they have not had the opportunity to provide considered argument about the issue. Both parties framed their submissions, in part, around the practice adopted by the QADT, the QCAT and the QIRC. I will determine the matter by considering the submissions made by the parties.

[58] In R v A2, Kiefel CJ and Keane J, in summarising the principles of statutory construction, stated in part:

The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.

Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. "Mischief" is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.

[59] The meaning of the provision in a statute must be determined by reference to the language of the instrument viewed as a whole and the legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. In addition, the purpose of the legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions.

[60] In addition, s 14A(1) of the Acts Interpretation Act 1954 provides that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. The noun 'purpose', for an Act, is defined in the Acts Interpretation Act 1954 to include its policy objective.

[61] Chapter 7, pt 1, div 1, sub-div 1 of the Act deals with all complaints. Section 134 of the Act sets out who may complain, s 135 of the Act provides that a person may make a complaint alleging more than one contravention of the Act and s 136 of the Act sets out the formalities of making a complaint. Section 144 is located in ch 7, pt 1, div 1, sub‑div 1 of the Act.

[62] Once a complaint has been made, ch 7, pt 1, div 2 of the Act provides for the investigation process. Section 154A of the Act provides that at any time after the complaint has been received, the HRC may investigate the complaint.

[63] Chapter 7, pt 1, div 3 of the Act sets out the conciliation process. Section 158(1) of the Act provides that if the HRC believes that a complaint may be resolved by conciliation, the HRC must try to resolve it in that way.

[64] Chapter 7, pt 1, div 4 of the Act provides for the referral of an unconciliated complaint, that is or includes a work-related matter, to the QIRC.

[65] Chapter 7, pt 2 of the Act sets out what the QIRC may do and div 2 of that part sets out the hearing process. Chapter 7, pt 2, div 3 of the Act sets out the post‑hearing process which includes s 209. That section provides for the orders the QIRC may make if it decides the respondent has contravened the Act. That power includes an order requiring the respondent to pay the complainant, within a specified period, an amount it considers appropriate as compensation for the loss or damage caused by the contravention and an order requiring the respondent to do specified things to redress loss or damage suffered by the complainant because of the contravention. Section 209(5) defines 'damage', in relation to a person, to include '... the offence, embarrassment, humiliation, and intimidation suffered by the person.'

[66] Having regard to the context in which s 144 appears in the Act and to its terms:

the 'complaint' referred to in s 144(1) is the complaint made to the HRC pursuant to s 134 of the Act; and

the purpose or policy objective of s 144 of the Act is to confer discretion on the QIRC to make an order prohibiting any person from doing an act that might prejudice either:

− the investigation or conciliation of the complaint by the HRC, as provided for in ch 7, pt 1, divs 2 or 3 of the Act; or

− an order the QIRC may make after a hearing, as provided for in ch 7, pt 2, div 3 of the Act.

the consideration of the questions required to be considered in s 144 occurs within the ambit of a provision which, on its face, involves the exercise of a wide discretionary power to make orders directed to the maintenance of the status quo for the purpose of enabling the processes provided under the Act to be effectively pursued, and to maximise the opportunity for its objectives to be achieved which include protection from unfair discrimination, the investigation of complaints in which discrimination is alleged and, if the HRC believes resolution by conciliation is possible, attempts to do so; and

the discretion to make an order under s 144 is to be exercised in a way which recognises that it is intended, primarily, to protect the interests of the complainant before reference of the complaint to the tribunal.

[68] Justice Wilson in McIntyre stated that while the QCAT and the QADT have generally approached the exercise of the discretion arising under s 144 in a way that is used in the courts in applications for injunctions, that was not to say that an applicant who establishes a prima facie case and that the balance of convenience lies in the applicant's favour, can avoid meeting the obligation to also establish what s 144 specifically requires, namely, the making of an order prohibiting a person from doing an act that might prejudice the investigation or conciliation of the complaint or an order that the tribunal might make after a hearing.

[69] Indeed as submitted by Viva, Wilson J held that by having regard to the word 'might' in s 144 of the Act, an applicant has to show that a possibility of prejudice exists that is tangible or, at least, perceptible and plausible, and not too remote and unlikely.

[70] In the same vein, Judge Horneman-Wren in Coop relevantly stated:

[88] The nature and content of the injunction also has a statutory context in an application under s 144. The nature of the order is that it must be, in all cases, prohibitory not mandatory. The content of the order in any particular case is that it will restrain the act or acts which have been identified as those which, if unrestrained, would cause potential prejudice to the orders which the Tribunal may otherwise make after a hearing.

[89] In my view, this case demonstrates the need for precision in respect of these matters. The prohibition of the particular act or acts identified as those which might prejudice an order the Tribunal may make is all that is authorised under s 144.

[71] For these reasons, I reject Mr A's submission that s 144(1) of the Act amounts to a threshold question only.

[43] In this case, the particular act that Ms Fellows seeks to prevent the Respondents from doing[19] is to end her employment. Ms Fellows submitted:

The Complainant made the s 144 application based on correspondence received from Mr Nicholson on 4 April 2023, indicating that the Respondents had intention to take a certain course of action based on evidence that was included in the substantive complaint (AD/2023/25), and has yet to be determined by the Tribunal.

The only mechanism available to the Respondents to terminate the Complainant's employment is to retire her on the grounds of ill health pursuant to section 107(1)(b)(i) of the Public Service Act 2022. To do this the Chief Executive must make their decision based on an independent medical examination (IME). However, the IME, the processes used to obtain it, and the means of disseminating the IME Report all form part of the substantive complaint.[20]

[44] Having regard to the observations of DP Merrell at [64] - [68] above, the matter the QIRC ought to consider is 'the act' (ending Ms Fellows' employment) that she contends might prejudice an order that the QIRC might make after a hearing. As explained by DP Merrell above, s 209 of the AD Act provides for the "orders the QIRC may make if it decides the respondent has contravened the Act. That power includes an order requiring the respondent to pay the complainant, within a specified period, an amount it considers appropriate as compensation for the loss or damage caused by the contravention and an order requiring the respondent to do specified things to redress loss or damage suffered by the complainant because of the contravention."

[45] The outcome Ms Fellows seeks in the substantive matter is an apology and financial compensation. Both those remedies remain available to Ms Fellows, whether or not she continues to be employed by the State, if the Commission were to ultimately to decide that the Respondents contravened the Act in the substantive matter.

[46] In considering whether a prima facie case is made out, I have considered the material before me. Further, the question is not whether the complaint will be substantiated. The test is less onerous than that. That is worth bearing in mind if the complaint progresses further.

[47] By the time the Form 85 was referred to the QIRC on 27 March 2023, the QHRC treated the complaint as alleging "Impairment discrimination in the area of work - sections 7(h), 10, 11, 15" under the AD Act.

[48] The Form 85 Referral from the QHRC characterised Ms Fellows' complaint as alleging direct and indirect discrimination in the work area on the basis of impairment. That is defined at ss 10 and 11 of the AD Act.

[49] Direct discrimination on the basis of an attribute happens if a person treats or proposes to treat a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different. In this case, the relevant attribute is said to be two separate 'impairments'. So, the comparator would be a person without the same impairment(s) or characteristics of the impairment(s), though in circumstances that are otherwise the same.

[50] Indirect discrimination is defined at s 11 of the AD Act. Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term:

with which a person with an attribute does not or is not able to comply; and
with which a higher proportion of people without the attribute comply or are able to comply; and
that is not reasonable.[21]

[51] The reasonableness of the term involves considering all of the circumstances of the case, including:

the consequences of failure to comply with the term;
the cost of alternative terms; and
the financial circumstances of the party imposing the term.[22]

[52] 'Term' is defined to include a "condition, requirement, or practice ..."[23]

[53] What is 'reasonable' requires considering all of the relevant circumstances.

[54] Ms Fellows submitted that s 139 of the AD Act states that the Commissioner must reject complaints that are frivolous, trivial, vexatious, misconceived, or lacking in substance. She inferred that the QHRC's referral of her complaint to the QIRC "is an indication that the QHRC believes that the issues raised by the Complainant were serious enough to refer to the QIRC for the Commission's investigation or conciliation", notwithstanding that such referral by the QHRC "does not in itself establish a contravention of the Act ..."[24] Further, Ms Fellows noted that the QHRC referral "contains 236 pages of material relating to the substantive matter" and so she asserted that the complaint "contains sufficient information to establish a prima facie case ..."

[55] The Respondents reject that position, instead submitting that the QHRC's acceptance and referral of Ms Fellows' complaint are both "insufficient to demonstrate a prima facie case" and "does not provide any indication of the QHRC believes that the issues raised in the complaint were 'serious enough' to refer to the QIRC."[25]

[56] While I do not necessarily accept that a prima facie case of discrimination has been made out at this stage, I now turn to consider the balance of convenience limb of that test out of an abundance of caution and fairness to the Complainant.

[57] In Banovic v State of Queensland, Department of Education,[26] Industrial Commissioner Dwyer said:

Evaluating where the balance of convenience lies, involves the weighing of competing prejudices to each party in circumstances where the injunction is or is not ordered. Whether such disadvantages could be overcome with an order for compensation, if the applicant were successful at the final hearing, is a significant factor in the consideration.[27]

[58] It is useful to reiterate that, broadly, the orders sought would prevent the Respondents "taking any action in relation to the complainant's employment with the Queensland Government", until the substantive matter is determined by the Commission. Presumably, that would include cessation of Ms Fellows' employment through retirement on the grounds of ill health, termination and the like.

[59] Consideration of the balance of convenience under s 144 (or s 190) of the AD Act is not of unlimited scope. The prejudice to be suffered is with respect to an order that the Tribunal might make after a hearing.

[60] The Commission is empowered by s 209 of the AD Act to make a vast array of orders if a complaint is proved.

[61] Ms Fellows seeks an apology and financial compensation. There is no reason why this Commission could not make such an order if Ms Fellows' employment were to cease. If it were the case that such action increased any future potential award of damages, then so be it. That circumstance would not stymie this Commission's power to make such an award.

[62] There is little or no prejudice to the Commission's ability to make orders about the complaint after a hearing, if the Respondents were to take any action in relation to Ms Fellows' employment.

[63] In considering the balance of convenience, it is not lost on me that time for a complaint to be conciliated at the QHRC, then be referred to this Commission for conference, then be heard and determined, could be years. That is relevant to Ms Fellows' prejudice - but also to the Respondent's prejudice as well.

[64] In conclusion, in weighing the parties' written submissions, I have determined that the Form 84 Application ought to be dismissed.

[65] That is because Ms Fellows filed the Form 84 Application on 2 May 2023 - after the QHRC filed the Form 85 Referral to the QIRC on 27 March 2023. Section 144 of the AD Act provides that such application for an order protecting the complainant's interests may be made before such referral was made - not after.

[66] While Ms Fellows stated she was unaware her complaint had been referred to the QIRC on 2 May 2023, that cannot be true because attached to the Form 84 Application was correspondence from the QHRC to Ms Fellows dated 24 March 2023 advising her of the referral to the QIRC.

[67] That is the matter subject of this decision.

[68] Mindful of the efficient management of matters before the Commission, I have also turned my mind to the scenario whereby Ms Fellows may instead have sought orders under s 190 of the AD Act. That is because she had signalled that potential course of action by the words:

Had the Complainant been aware of the referral of the matter, she would have made an application for an interim order protecting her interests under section 190 of the AD Act 1991.[28]

[69] As the QHRC had by that time conciliated and referred Ms Fellows' complaint to the QIRC, what remained was an opportunity to make application for "an order prohibiting a person from doing an act that might prejudice an order the tribunal might make after a hearing."[29] While not persuaded that Ms Fellows had yet established a prima facie case, I proceeded to consider the 'balance of convenience' test out of an abundance of fairness to the Complainant.

[70] I found that the balance of convenience does not favour the making of orders sought. The prejudice to be suffered to Ms Fellows, with respect to an order that the tribunal might make after a hearing, if the Respondent were to take any action to cease her employment, is not sufficient to warrant such a significant order. That is because the remedies Ms Fellows seeks in the substantive matter (an apology and financial compensation) can be ordered if the QIRC ultimately finds in her favour, whether or not she continues to be employed by the State.

The Applicant's application for an order pursuant to s 144 of the Anti-Discrimination Act 1991 is dismissed.

[1] QHRC Complaint Form dated 6 December 2021, 2.

[2] Email from Ms P. Tyquin, A/Senior Principal Lawyer, Crown Law to the Industrial Registry, cc Ms K. Fellows, dated 5 May 2023.

[3] Directions Order issued 29 August 2023, [4].

[5] Complainant's Statement of Facts and Contentions filed in matter AD/2023/25 on 22 September 2023, [2].

[7] Form 84 Application for an order protecting complainant's interest, 3.

[8] Respondents' submissions filed 26 September 2023, [3]-[5].

[9] Complainant's reply submissions filed 10 October 2023, [1]-[3].

[19] By filing the Form 84 Application for an order protecting complainant's interests on 2 May 2023.

[20] Complainant's reply submissions filed 10 October 2023, [4], [7].

[24] Complainant's submissions filed 12 September 2023, [11].

[25] Respondents' submissions filed 26 September 2023, [13].

[28] Complainant's reply submissions filed 10 October 2023, [3].

Interpretation Act 1954

Fellows v State of Queensland

At a glance

Court

Decision date

Source

Judgment (190 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (2)